Board cannot appeal order overturning permission for 245 apartments, court rules

The High Court has refused to grant leave to An Bord Pleanála to appeal the quashing of permission for a high-rise development of 245 apartments on part of the former Premier Dairies site in Finglas on Dublin's northside.

A local resident, Rita O’Neill, secured an order from Mr Justice Denis McDonald last July overturning the board’s permission on grounds the permitted height of the apartments, ranging from blocks of six to 10 storeys, materially contravened the Dublin City Development Plan. The proposed height was “significantly in excess” of what was permitted under any previous development proposed for the same site, the judge noted.

Mrs O'Neill, a public servant, of nearby Glenhill Road, on behalf of residents of the Glenhill estate and Premier Square apartments, challenged the November 2019 permission obtained by Ruirside Developments for 245 apartments and a childcare facility on a vacant 1.23 hectare brownfield site. She said the Glenhill estate, comprising two-storey houses with gardens, is northeast of the site and would be overlooked by the proposed development, with residents unable to enjoy any part of their open space.

Because the proposed development was classified as strategic housing development, it bypassed the normal planning route in that permission was sought directly from the board.

The board subsequently applied for a certificate for leave to appeal the judge’s order.

In a judgment on Thursday, Mr Justice McDonald found the board had not established that exceptional points of law arose from his July judgment such that an appeal was in the public interest.

The board, among various grounds, argued an appeal was necessary to clarify the circumstance in which it may grant permission in material contravention of a development plan, having regard to the building height guidelines.

It said many cases are coming before it involving material contravention, especially under the 2016 Act governing strategic housing development.

The judge noted, since his July judgment, the Court of Appeal had issued a judgment from which it seemed to follow, where building height guidelines contain a Specific Planning Policy Requirement (SPPR), the relevant planning authority and the board must assess development proposals against specific development management criteria set out in the guidelines.

Because the Court of Appeal had not made a specific finding to that effect, the question might still be said to be open, although his own view was that comments by the Court significantly reduce the scope for such uncertainty.

While it was at least arguable this issue raised a point of law of exceptional public importance, he did not consider an appeal was desirable in the public interest. This was because the question of law to be decided in any appeal should be one which had actually decided the case, not one which, if answered differently, would not have changed the result.

Even if the board won that point, there would still be a decision adverse to it because he had found, in his July judgment, the board failed to provide adequate reasons for disagreeing with its inspector’s recommendation that some floors be omitted from the proposed development, he noted. Those omissions would have meant reducing the nine/10 storey heights of two apartment blocks to a maximum of six/eight storeys and seven/eight storeys.